Back in the January 8th issue of Coverage Opinions I mentioned a coverage case involving two guys fighting at a urinal in a bar. Mercury Casualty Co. v. Noll (Cal. Ct. App. Sept. 26, 2013) [enhanced version available to lexis.com subscribers]. Well here’s another recent one in the urinal fighting genre. And it’s even more interesting. In Noll the two guys didn’t know each other. But, in Schaefer v. Allstate, No. 27109 (Ohio Ct. App. Apr. 9, 2014), [enhanced version available to lexis.com subscribers], the guy seeking coverage knocked his wife’s lover unconscious at the urinal. In Noll the court flushed the insured’s hope for coverage. But, in Schaefer, the court held that the insured was entitled to coverage.
Of course Schaefer involved whether coverage was owed for a seemingly intentional act. The appeals court reversed the trial court which had found that no coverage was owed for that reason. The appeals court, resting its decision on the basis that an intentional act can be an accident, when the injury is unintended and unforeseen, concluded that, based on the following facts, that there was a genuine issue of fact as to whether the insured’s push to the victim’s shoulder could reasonably be expected to result in him falling over and sustaining injury:
“Musil testified that he noticed Schaefer ahead of him in line for the restroom, but was not certain it was him until Schaefer turned out of line to step up to a urinal. At that time, Musil was approximately three people back from the adjacent urinal. According to Musil, he stepped out of line and stood next to Schaefer. While yelling at Schaefer to leave his wife alone, Musil pushed Schaefer’s right shoulder, attempting to turn him so that Schaefer would be facing Musil. Schaefer fell, hit his head, and was rendered unconscious. Musil testified that he was ‘shocked’ and thought Schaefer was ‘faking it,’ but did not touch him because he was worried that someone would misinterpret his attempt to help. Instead, Musil stood and waited for security to arrive. Schaefer testified that he suffered lacerations and bruises to his head.”
Wow. Two urinal-related liability coverage decisions in a six-month period. I hope we see a steady stream of these.
Coverage Opinions is a bi-weekly (or more frequently) electronic newsletter reporting or providing commentary on just-issued decisions from courts nationally addressing insurance coverage disputes. Coverage Opinions focuses on decisions that concern numerous issues under commercial general liability and professional liability insurance policies. For more information visit www.coverageopinions.info.
The views expressed herein are solely those of the author and not necessarily those of his firm or its clients. The information contained herein shall not be considered legal advice. You are advised to consult with an attorney concerning how any of the issues addressed herein may apply to your own situation. Coverage Opinions is gluten free but may contain peanut products.
Randy Maniloff is Counsel at White and Williams, LLP in Philadelphia. He previously served as a firm Partner for seven years and transitioned to a Counsel position to pursue certain writing projects including Coverage Opinions . Nonetheless he still maintains a full-time practice at the firm. Randy concentrates his practice in the representation of insurers in coverage disputes over primary and excess obligations under a host of policies, including commercial general liability and various professional liability policies, such as public official’s, law enforcement, educator’s, media, computer technology, architects and engineers, lawyers, real estate agents, community associations, environmental contractors, Indian tribes and several others. Randy has significant experience in coverage for environmental damage and toxic torts, liquor liability and construction defect, including additional insured and contractual indemnity issues. Randy is co-author of “General Liability Insurance Coverage - Key Issues In Every State” (Oxford University Press, 2nd Edition, 2012). For the past twelve years Randy has published a year-end article that addresses the ten most significant insurance coverage decisions of the year completed.
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